Separation of Powers Under the 1999 Nigerian Constitution ...

Separation of Powers Under the 1999 Nigerian Constitution: The Core Legal Dilemmas

[235] Sriwijaya Law Review Vol. 3 Issue 2, July (2019)

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Separation of Powers Under the 1999 Nigerian Constitution: The Core Legal

Dilemmas

Olusola Babatunde Adegbite,* Oreoluwa Omotayo Oduniyi,* and Jubril Akinwunmi Farinde*

Abstract: At the core of Nigeria's constitutional practice lies the doctrine of separation of powers. The

application of the principle is such that power under Nigeria's presidential cum federal system is delineat-

ed both horizontally and vertically. Even though the doctrine has a major feature of every constitution in

the world, its implementation does not seem satisfactory given the insults that have been carried out by

successive governments. This paper examines the doctrine of separation of powers and its

complicatedness as regards to its practice in Nigeria's constitutional democracy. Reflecting on the history

of Nigeria, this paper will discuss the eroded implementation of the principle of separation. As a result, it

seems to be that the concept of "separation" is not going well and tends to fuse the function of executive

and legislative institutions. In this situation, the principle is in a dilemma. This paper further offers a

flicker of hope by pointing to the fact that all hopes do not appear lost, as the Judiciary still maintains

some level of ‘separateness,' except that only time will tell as to how much this lasts.

Keywords: Constitution; Democracy; Nigeria; Separation of Powers.

ARTICLE HISTORY:

DOI: 10.28946/slrev.Vol3.Iss2.281.pp235-252

Received: May 6, 2019;

Reviewed: Jul 16, 2019;

Accepted: Jul 28, 2019;

Published: Jul 31, 2019.

* Faculty of Law, Obafemi Awolowo University,

Ile-Ife, Nigeria. E-mail: oadeg-

[email protected]; adeg-

[email protected].

INTRODUCTION

A critical feature of every modern

Constitution is the separation of powers

(hereinafter referred to as the doctrine)

amongst the different organs or branches of

government. The doctrine not only serves as

a guide to the proper organization of powers

and government, as well as being the most

effective embodiment of the spirit underlying

it,1 it is further founded on the existential fear

that to concentrate powers in just one branch,

person, or group of persons is tantamount to

abuse of power, arbitrariness, and tyranny.

From its humble origin, the doctrine has had

a significant influence on the running of

governmental affairs and has helped put in

check the morbid desires of men of ill will.

However, in lieu of rapid political

development of the 21st century, its relevance

as the touch-bearer of contemporary

constitutional governance has come under

severe attack.

Right from independence, successive

governments in Nigeria have engineered 1 M.J.C. Vile, Constitutionalism and the Separation

of Powers, (Indianapolis: Liberty Funds Inc., 2nd

edn., 1998), pp1-443.

ISSN Print: 2541-5298 ISSN Online: 2541-6464

[235-252]

mailto:[email protected]



Olusola Babatunde Adegbite, Oreoluwa Omotayo Oduniyi, and Jubril Akinwunmi Farinde

Sriwijaya Law Review Vol. 3 Issue 2, July (2019) [236]

different constitutions all providing for the

doctrine of separation of powers.2 The latest

is the Constitution of the Federal Republic of

Nigeria, 1999.3 Notwithstanding the exist-

ence of the doctrine in these documents, the

practical reality is that power rather than

being ‘separated’ has not only enjoyed an

appearance of ‘fusion’, but most pathetically

has been personalised by the Executive

branch in such a manner as to make it seem

as representing government in totality. This

scenario has also been replicated at the other

two levels of government, i.e., the State and

Local governments. Against this background,

a fast-maturing notion today by legal schol-

ars such as Calabresi is that the doctrine is in

crisis.4 The position is that both Executive

and Legislature are so entangled in each oth-

er functions. So, both institutions have

blurred the lines of separation.5 The refer to

examples such as the Executive encroaching

on the function of law-making through the

issuance of executive orders and proclama-

tions, as well as the Legislature getting in-

2 From 1954 when a new era of Self-government

emerged, the Nigerian State has engineered seven

federal constitutions namely the 1954 Constitution,

the 1960 Independence Constitution, the 1963 Re-

publication Constitution, the 1979 Constitution,

the 1989 Constitution, the 1995 Constitution, and

the 1999 Constitution. It is worth stating that both

the 1989 and the 1995 Constitution were inchoate

documents, and never became fully-fledged Con-

stitutions. For an extensive overview on the trajec-

tory of Nigerian Constitutions, see generally A.

Gboyega, ‘The Making of the Nigerian Constitu-

tion,' in O. Oyediran (ed.), Nigerian Government

& Politics under Military Rule, (Lagos: Friends

Foundation Publishers Ltd., 1988), pp1-319. 3 This Constitution is more notoriously referred to as

Decree No.24 of 1999, as the last act of Military

law-making by the administration of General Ab-

dulsalami Abubakar. 4 S.G. Calabresi, M.E. Berghausen, and S. Albert-

son, “The Rise and Fall of the Separation of Pow-

ers,” (2012), 106 (2), Northwestern University Law

Review, pp527–550. 5 Note 4.

volved in executive functions through con-

gressional oversight activities as pointers to

the erosion of the doctrine.6 In order to

thematically address these issues as well as

deepen the ongoing conversation, this Paper

will be examining the doctrine first from an

historical context, to discussing its seeming

decline under Nigeria’s Constitutional

framework, towards determining how the

country’s constitutional experience can be

the better for it.

DEFINITION AND HISTORY OF THE

DOCTRINE OF SEPARATION OF

POWERS

The doctrine of separation of powers

articulates that each branch of government is

distinct, independent, and not seen as

exercising the powers of others.7 It has also

been described to mean that one branch

should not control or interfere with the work

of another.8 The separation of legislative,

executive, and judiciary powers is a key

principle in most democratic Constitutions.9

Different arguments have been pushed

concerning the allocation of governmental

powers following this doctrine. The

functionalists argue that most Constitutions

do not say much about the distribution of

6 Note 4. 7 A. Hamilton, J. Madison, and J. Jay, The

Federalist: A Collection of Essays, Written in

Favour of the New Constitution, as Agreed upon

by the Federation Convention September 17, 1787,

(The Lawbook Exchange Ltd., 2005), pp1-628. 8 A.W. Bradley and K.D. Ewing, Constitutional and

Administrative Law, (Longman, 13th edn., 2003),

p84. 9 K. Fuchs and F. Herold, “The Costs and Benefits

of a Separation of Powers: An Incomplete

Contracts Approach,” (2011), 13 (1), American

Law and Economics Review, pp131-167.



powers amongst different branches of

government.10

The early origin of the doctrine dated

back to the 4th century B.C. when Aristotle,

in his treatise ‘Politics’, advocated for three

agencies of government i.e. the general

assembly, the public officials, and the

judiciary, to be the structure of the State.11

Aristotle tried to make distinctions between

the function and authority of these three

branches that make up a government.12 After

the fall of the Roman Empire, and with

Europe divided into several nation-states,

most of the power of the state was domiciled

in tyrannical monarchs, except for the

English society where the Parliament had

emerged. Following development under

English constitutional rule, John Locke

developed the idea of the three branches of

government which he gave the titles

Executive, Legislature, and Judiciary.13

According to Locke to secure the gains of

liberty, power must not be seen as

concentrated in one man, but in separate

hands or institutions.14 He was of the view

that the greatest danger to democratic rule

would be to situate all powers in the hands of

the legislature as they may remove

themselves from the purview of the law, with

10 P. L. Strauss, 1984, “The Place of Agencies in

Government: Separation of Powers and the Fourth

Branch,” Columbia Law Review, 84, pp573-597. 11 Aristotle, Politics, (Indianapolis: Hackett

Publishing Co., Translated by C.D.C Reeve 1998),

pp1-384. 12 Note 11. After Aristotle’s ground work, James

Harrington an English scholar espoused the

doctrine in his work, ‘Common Wealth of

Oceana’, (1656), which romanticized a utopian

political system built on the separation of powers. 13 J. Locke, Treatise of Civil Government, 1690,

(Cambridge: Cambridge University Press, Peter

Laslett ed.,1988), pp366-367 14 Note 13. See also A. Appodarai, The Substance of

Politics, (Oxford: Oxford University Press, 2001),

pp1-602.

the evil that it makes the citizens subject to

the arbitrariness and whimsical

idiosyncrasies of men of evil intentions.15

However, a stoic opponent of the doctrine is

Thomas Hobbes who in his vitriolic

denouncement of the doctrine argued that

governmental powers were indivisible and

inseparable.16

In the long history of constitutional

thoughts, the opinion of other leading

constitutionalists has also helped to shape the

development of the doctrine. The trio of

Alexander Hamilton, James Madison, and

Thomas Jefferson, stood out in their genera-

tion as men equipped with extraordinary

foresight and vision, that saw them produce

new understanding of political power and the

institution of government among the

people.17 According to them, “If Men were

Angels, no government would be necessary,

and if Angels were to govern men, neither

external nor internal controls on government

would be necessary”.18 They further stated

that, “In framing a government which is to be

administered by men over men, the great

difficulty lies in this – You must first enable

the government to control the governed, and

in the next place oblige it to control itself”.19

They then concluded that, “For one, a

dependence on the people is the primary

control on the government, but experience

has taught mankind the necessity of auxiliary

precautions”.20

15 Note 14. 16 T. Hobbes, Leviathan 1651 – (Cambridge Text in

the History of Political Thought, (Cambridge:

Cambridge University Press, Richard Tuck Ed.,

1996), pp1–510. 17 C.D. Bowen, Miracle at Philadelphia: The Story of

the Constitutional Convention May – September

1787, (Back Bay Books, 1986), pp1–333. 18 J. Madison, Federalist Papers No. 51, (1788). 19 Note 18. 20 Note 18.



There were, however, aspects of diver-

gence in their views. James Madison, for

instance, was of the opinion that self-interest

was an inevitable force in check-mating the

political behavior of leaders.21 Extending this

argument, he said, “as there is a degree of

depravity in mankind which requires a

certain degree of circumspection and

distrust, so there are other qualities in

human nature, which justify a certain portion

of esteem and confidence”.22 He then goes

ahead to add that the “aim of every political

constitution is, or ought to be, first to obtain

for ruler men who possess the most wisdom

to discern, the most virtue to pursue, and the

common good of society; and in the next

place, to take the most effectual precautions

for keeping them virtuous while they continue

to hold public trust”.23 Thus, though Madison

agreed with Locke that where power is

domiciled in just one branch of government,

tyrannical rule is the result;24 he was also of

the opinion that such men may possess

certain inherent qualities that may be enough

to keep them in check.

However, his fellow Federalists

compatriots disagreed with him, saying self-

interest all by itself is not enough. According

to Hamilton, “The supposition of universal

venality in human nature, is little less an 21 Note 18. 22 Note 18. 23 J. Madison, Federalist Papers, No. 57, (1788). 24 In making this point, he opined as follows, “The

accumulation of all powers, legislative, executive,

and judiciary, in the same hands, whether of one, a

few, or many, and whether hereditary, self-

appointed, or elective, may justly be pronounced

the very definition of tyranny. Were the federal

Constitution, therefore, really chargeable with this

accumulation of power, or with a mixture of

powers, having a dangerous tendency to such an

accumulation, no further arguments would be

necessary to inspire a universal reprobation of the

system”. See J. Madison, The Federalist, No. 47,

(Clinton Rossiter ed., 1961), pp1-560.

error in political reasoning than the

supposition of universal rectitude”.25 Thomas

Jefferson, however, appears to depart from

the position of his fellow intellectuals

radically. Expressing rather iconoclastic

thoughts, he was of the opinion that,

"turbulence is productive of good, it prevents

the degeneracy of government, and nourishes

a general attention to the public affairs. I

hold that a little rebellion now and then is a

good thing”.26 The sum of the thoughts of

these outstanding intellectuals, is that the

only security against a gradual concentration

of powers in one hand lies in granting unto

the three branches of government the

constitutional means to resist the

encroachment of others.27 In this wise,

constitutional safeguard are designed in a

manner that the defense provided for, is

commensurate to the danger of attack, such

that reckless ambition in one branch is

countered effectively by potent checks in the

other.28

Following the works of the French

Political theorist and philosopher, Baron de

Montesquieu, separation of powers gained

momentum as a major pillar of Dicey’s Rule

of Law,29 particularly one that will serve as a

bulwark against the centralization of power

in the hands of a single individual, group, or

institution.30 According to Montesquieu who

25 A. Hamilton, The Federalist Papers, No.76 26 See Letter to Madison, Jan. 30, 1787, in The

Portable Thomas Jefferson 416-410 (M. Peterson

ed. 1975) 27 J. Madison, n. 15. 28 Note 27. 29 A. V. Dicey, Introduction to the Study of the Law

of the Constitution, (Macmillan Publishers, 10th

Edn., 1959), p424. 30 Baron de Montesquieu, The Spirit of Laws, (Frank

Neuman ed., Encyclopaedia Britannica edn., 1952)

(1748). Edition published in Paris in 1877, 11.6.

The title of the chapter is ‘De la constitution d’

Angleterre’; See also Charles de Montesquieu, The



distastefully resented the idea of absolutism,

where powers are fused the consequences are

condemned to be dire.31 Montesquieu’s

postulations is rooted in the twin idea of rule

of law and liberty as resistance against the

tyrannically governments that were the order

of the day in then Continental Europe.32

However, for Montesquieu executive power

was a power to execute all laws except the

exercise of judicial powers.33 This was a

position radically different from Locke’s

argument that executive power and judicial

powers were historically combined as one.

The same sentiment was shared by the

Spirit of Laws – Cambridge Text in the History of

Political Thought, (Cambridge: Cambridge

University Press, A. M. Cohler et al. eds., 1989),

pp1-747. 31 Note 32. Montesquieu expressed this thinking in

the following words, “When the legislative and

executive powers are united in the same person, or

in the same body of magistrates, there can be no

liberty, because apprehensions may arise, lest the

same monarch or senate should enact tyrannical

laws, to execute them in a tyrannical manner.

Again, there is no liberty if the judicial power be

not separated from the legislative and executive.

Where it joined with the legislative, the life and

liberty of the subject would be exposed to arbitrary

control: for the judge would then be the legislator.

Where it joined with the executive power, the judge

might behave with violence and oppression.

Miserable indeed would be the case, were the

same man or the same body, whether of the nobles

or of the people, to exercise those three powers,

that of enacting laws, that of executing the public

resolutions and that of judging the crimes or

differences of individuals”. However, his notion of

separation of powers has been heavily criticised.

See L. Claus, ‘Montesquieu's Mistakes and the

True Meaning of Separation of Powers’, (2005),

25, Oxford Journal of Legal Studies, p419. 32 From the rule of Alexander, the great down to

Napoleon Bonaparte, the rise of tyranny was a part

of the political order in early medieval Europe. 33 Montesquieu cited structural reasons for why the

judicial should be separated from the executive.

For example, he pointed out that in monarchic

states, the prince was the prosecutor who punished.

If the same prince also judged the case, the prince

"would be both judge and party,” and that clearly

would be improper.

English thinker, Blackstone who postulated

that executive power was the power to

execute laws.34 He added that, “executive

powers of the laws is lodged in a single

person (in England); they have all the

advantages of strength and dispatch”.35 This

position had been hinged on the fact that the

concept of liberty had by that time come to

enjoy a pride of place under English

Constitutional framework, a development

that was helped greatly by the inspiration that

came from two leading human rights36

documents of that time, the English Bill of

Rights 1686, and the Magna Carta 1215.37

The influence of these two landmark

documents pushed for a system in which the

powers of the English Monarch which was

hitherto absolute and unchallengeable, would

be limited and a part exercised by the English

34 In echoing Montesquieu thoughts, Sir William

Blackstone noted as follow, “In all tyrannical

government the supreme magistery, or the right

both of making and enforcing the laws, is vested in

one and the same man, or one and the same body

of men; and whenever these two powers are united

together, there can be no public liberty. The

magistrate may enact tyrannical laws, and execute

them in a tyrannical manner, since he is possessed

in quality of dispenser of justice, with all the

quality of dispenser of justice, with all the power

which he as legislator thinks proper to give

himself. But, where the legislature and executive

authority are in distinct hands, the former will take

care not to entrust the later with so large a power,

as may tend to the subversion of its own

independence, and therewith of the liberty of the

subject”. See William Blackstone, Commentaries

on the Laws of England, (Clarendon Press, 1st ed,

1765), pp 259-260. 35 Note 34. 36 Nurhidayatuloh, N., & Febrian, F., 2019, “ASEAN

and European Human Rights Mechanisms, What

Should be Improved?,” Padjadjaran Journal of

Law, 6(1), pp151-167. 37 English Constitutional history credits both the Bill

of Rights and the Magna Carta with shaping the

development of constitutional rights in the British

Empire and the gradual dismantling of the quiet

authoritarianism of age-long Monarch that had

ruled with a fiat.



Parliament.38 Thus, with the birth of the

Crown and Parliament as two organs of the

then English Constitutional structure,

Montesquieu through his postulations

advocated inclusion of the Judiciary, to be

the third leg of the tripod.

In most modern governments, power in

this regard is of three species vested in dis-

tinct branches of government i.e. the Legisla-

ture which makes the law, the Executive

which executes the law, and the Judiciary

which interprets the law.39 Where this de-

partmentalization is properly in place, the

argument is that government will run

smoothly.40 From its early practice, the doc-

trine of separation of powers is now a land-

mark feature of the US Constitution,41 and

has emerged as an important part of the gen-

eral understanding of the doctrine of consti-

tutionalism.42 Not only does it advocate that

38 As a matter of fact, this era saw the quick rise of

the corollary doctrine of ‘Parliamentary

Supremacy’, in which for the first time, the powers

of the Crown was questioned and the authority of

the Parliament to make any law, amend any law, or

even repeal any law, was seen as final. 39 For an extensive read, see generally O. Abifarin,

Essays on Constitutional and Administrative Law

under the 1999 Constitution, (Kaduna:

Mofolayomi Press, 2000), p5; K.M. Mowe,

Constitutional Law in Nigeria, (Lagos: Malthouse

Press Ltd, 2008), p23. 40 N. Barber, 2001, “Prelude to the Separation of

Powers,” Cambridge Law Journal, 60, p59. 41 G. Casper, “An Essay in Separation of Powers:

Some Early Versions and Practices,” (1989), 30,

William and Mary Law Review, p211; L. Lessig

and C.R. Sunstein, “The President and the

Administration,” (1994), 93, Columbia Law

Review, p1. 42 J. Waldron, ‘Constitutionalism: A Skeptical View’,

in T. Christiano and J. Christman (eds.),

Contemporary Debates in Political Philosophy,

(2009), pp270-273; E. Carolan, The New

Separation of Powers: A Theory of the Modern

State, (Oxford: Oxford University Press, 2009),

p18.

each branch of government is independent,43

it masterly annuls the possibility of such

powers being concentrated in just one per-

son,44 as a way of protecting liberty,45 and

guarantee the security of the state.46 For ex-

ample, in modern constitutional democracies,

the independence of the judiciary is a sign-

post of the maturity of democratic rule.47

THE NIGERIAN CONSTITUTIONAL

MODEL OF THE DOCTRINE OF SEP-

ARATION OF POWERS

The Doctrine of separation of powers is part

of the heart and soul of Nigeria’s 1999

Constitution. This Constitution, which is the

country’s fundamental law makes an effort to

intelligently allocate powers and functions

amongst the three branches of government

and their various subsidiaries.48 The twin

objectives of the incorporation of the

doctrine into the country’s constitutional

framework is to ensure efficiency in

governance delivery and prevent the exercise

of arbitrary power.49

Under the 1999 Nigerian Constitution,

separation of powers is both horizontal and

vertical. As regards to the horizontal

43 J. Alder, Constitutional and Administrative Law,

(London: Macmillan Publishers, 7th Edn., 2009),

p143. 44 A. A. Taiwo, Separation of Powers: A Key

Principle of Democratic Governance, (Ibadan:

Ababa Press Ltd., 2013), p32. 45 T. R. S. Allan, Law, Liberty and Justice: The Legal

Foundations of British Constitutionalism, (Oxford:

Oxford University Press, 1994), p3. 46 D.J. Levinson and R.H. Pildes, 2006, “Separation

of Parties, Not Powers,” Harvard Law Review,

119, p2311. 47 J.K. Nyerere, Freedom and Unity, (Dar es Salaam:

Oxford University Press, 1967), p131. 48 A. Phillips, “Nigeria’s Federal Financial Experi-

ence,” (1971), 9 (3), The Journal of Modern Afri-

can Studies, pp389-408. 49 Keyamo v. House of Assembly of Lagos, (2000) 12

NWLR, p218.



separation of powers, the framers of this

organic law carefully departmentalised

governmental powers into three branches,

namely - the Legislature under Section 4 of

the Constitution,50 the Executive under

Section 5 of the same document,51 and the

Judiciary under Section 6,52 in a manner that

50 In this wise, the Constitution provides that, “The

legislative powers of the Federal Republic of

Nigeria shall be vested in a National Assembly for

the Federation, which shall consist of a Senate and

a House of Representatives. The National

Assembly shall have power to make laws for the

peace, order and good government of the

Federation or any part thereof with respect to any

matter included in the Exclusive Legislative List

set out in Part I of the Second Schedule to this

Constitution. The power of the National Assembly

to make laws for the peace, order and good

government of the Federation with respect to any

matter included in the Exclusive Legislative List

shall, save as otherwise provided in this

Constitution, be to the exclusion of the Houses of

Assembly of States. In addition and without

prejudice to the powers conferred by subsection

(2) of this section, the National Assembly shall

have power to make laws with respect to the

following matters, that is to say - (a) any matter in

the Concurrent Legislative List set out in the first

column of Part II of the Second Schedule to this

Constitution to the extent prescribed in the second

column opposite thereto; and (b) any other matter

with respect to which it is empowered to make

laws in accordance with the provisions of this

Constitution.” See Section 4 (1) (2) (3) & (4),

Constitution of the Federal Republic of Nigeria,

1999. 51 On this, the Constitution provides that, “Subject to

the provisions of this Constitution, the executive

powers of the Federation - (a) shall be vested in

the President and may subject as aforesaid and to

the provisions of any law made by the National

Assembly, be exercised by him either directly or

through the Vice-President and Ministers of the

Government of the Federation or officers in the

public service of the Federation; and (b) shall

extend to the execution and maintenance of this

Constitution, all laws made by the National

Assembly and to all matters with respect to which

the National Assembly has, for the time being,

power to make laws”. 52 For the powers in this regard, see Section 6 (1) &

(2) of the Constitution of the Federal Republic of

Nigeria, 1999 which provides that, “The judicial

the separateness envisaged is clear and

distinct. This is established under Part II of

the Constitution, under the broad heading of

‘Powers of the Federal Republic of

Nigeria’.53 These provisions i.e. Sections 4,

5, and 6 of the 1999 Nigerian Constitution,

are so carefully worded to protect these

powers. For instance, the powers of the

Legislature to makes laws for the order and

good governance of Nigeria has been

reaffirmed in the leading Supreme Court’s

decision in Attorney General of Bendel State

v. Attorney General of the Federation.54 It is

along these clear demarcations that each of

these branches have carried out its core

mandate in the development of Nigeria’s

constitutional democracy, and to reaffirmed

the constitutionality of the doctrine, the

courts have not shied away from making far-

reaching pronouncements on its role. It was

to this end that again in Attorney General of

Bendel State v. Attorney General of the

Federation,55 the Supreme Court this time

per Eso J.S.C., speaking of separation of

powers said:

powers of the Federation shall be vested in the

courts to which this section relates, being courts

established for the Federation. The judicial powers

of a State shall be vested in the courts to which this

section relates, being courts established, subject as

provided by this Constitution, for a State”. See

additionally Section 6 (3), (4), (5), & (6) of the

same Constitution. Note that the notion of

constitutionalising judicial powers is rooted in the

need to resolve complex disputes resulting from

the application of the laws. See H.L.A. Hart, The

Concept of Law – (Clarendon Law Series),

(Oxford: Oxford University Press, 3rd Ed., 2012),

pp1-327. 53 See also Chapter V which deals extensively with

the Legislature, Chapter VI, which spells out sev-

eral other powers of the Executive, and Chapter

VII which contains more information on Judicial

powers of the State. 54 (1981) 10 SC 1 at 198. 55 (1982) 2 NCLR 509.



Now it is time that the legislature, especially

in a country like ours which has accepted the

doctrine of separation of powers and which

has got that doctrine embodied in

constitution, is a master of its own household.

Additionally, the court opined in Unongo v.

Aper Aku,56 that: The Constitution of the Federal Republic of

Nigeria 1979 which is hereinafter referred to

as the Constitution is very unique compared

with the previous Constitution in that the

executive, the legislature and the judiciary

are each established as a separate organ of

Government. There is what can be termed a

cold calculated rigidity in this separation as

shown in sections 4, 5 & 6 of the Constitution

which established the legislative and the

executive and the judicature respectively.

There is also a vertical separation of

powers, in which powers are devolved

amongst the three tiers of government,

namely the Federal, State, and Local

Governments.57 The notion of both

horizontal and vertical separation of powers

is well captured in the opinion of the

Supreme Court per Rhodes - Vivour J.S.C.,

in Ugba v Suswan,58 where the Court said:

“The Constitution sets up a federal system by

dividing powers between the federal and state

governments. It establishes a national

government divided into three independent

branches. The executive branch makes the

law, while the judiciary explains the law.

There is no document superior to the

Constitution in democratic governance. It is

the heart and soul of the people.”59

SEPARATION OF POWERS AND THE

AGE OF ‘COOPERATION’: EXAMIN-

ING NIGERIA’S CONSTITUTIONAL

PRACTICE

56 (1983) 2 SC NLR 332 at 361. 57 This idea of devolution of powers can be gleaned

from the provisions of Sections 2 & 3, Constitution

of the Federal Republic of Nigeria, 1999. 58 (2005) 1 WRN 1 at 64. 59 Note 57.

Notwithstanding the departmentalisation of

the powers of the three branches under the

1999 Nigerian Constitution, the operation of

the document as a whole has rather shown a

situation in which all three branches have

their powers and responsibilities overlapping,

in a manner that one cannot conclusively

perform its constitutional function without

the approval of one or the other two. This is

in rooted in the idea of checks and balances,

in which each of the branches serve as a

check on the other. Scholars have opined that

this framework as it can be found under

American constitutional practice originally

has its roots in British idea of a ‘mixed

regime’, in which the Crown, the Lords, and

the Commons were co-opted together so as to

serve as a check on each other.60 However,

this later gave way to the current system in

which functions were separated.61

Notwithstanding the truism in this

statement, present reality appear to suggest

that the way and manner modern

governments are designed is such that the

historical delineation of powers have become

significantly blurred. In fact, it has been

argued that in reality, the usefulness of

separation of powers is consequent upon how

willing each branch of government is ready

to serve as a check on the other.62 Under

modern governments, powers are therefore

distributed in a manner that all branches of

government can complement each other’s

efforts towards delivering the goods of

governance to the people.63 This is the

invention of the idea of ‘cooperation’ in

60 S.G. Calabresi, M. E. Berghausen, and S.

Albertson, n.4. 61 Note 59. 62 A. Appodarai, n.11. 63 D. Kyritsis, 2012, “Constitutional Review in a

Representative Democracy,” 32, Oxford Journal of

Legal Studies, p303.



constitutional democracies, an idea captured

by Jackson, J. in Youngstown Co. v.

Sawyer,64 where the United States (US)

Supreme Court noted that, “While the

Constitution diffuses power the better to

secure liberty, it also contemplates that

practice will integrate the dispersed power

into a workable government65

Across the length and breadth of the

global constitutional landscape, this idea of

cooperation has continued to gain ascendan-

cy, even as watertight separation of powers

remains in decline. Two branches most cov-

ered in this regard are the Executive and

Legislature, both of whom are the most

visible branches of government, and both of

whom are consistently called upon to

‘cooperate,' ‘join hands,' and ‘complement'

each-other to ensure the smooth running of

government and avoid unnecessary

shutdowns.

However, in Nigeria it would appear as

if this idea of cooperation has been taken to

the extreme. Nigeria’s constitutional practice

though catering for separation of powers in

text, has conveniently operated a system in

which the Legislature literarily bonds with

the Executive, with this unholy alliance seen

as a convention that every new government

must follow. To make a clear distinction

between this unconstitutional relationship

and the developing idea of cooperation in

other climes, it is important to examine how

the framework of cooperation is crafted

under the Nigerian constitution. In presenting

this analysis, three (3) important areas in

which this has been constitutionalised would

be examined.

The first is the framework dealing with

spending/budgetary powers under the

Constitution. In this respect Section 81

64 (1952) 343 US 579. 65 Note 63.

provides that, “The President shall cause to

be prepared and laid before each House of

the National Assembly at any time in each

financial year estimates of the revenues and

expenditure of the Federation for the next

following financial year”.66 This is one side

of the framework dealing with ‘power of the

purse.' The other side is found in the

combined provisions of Sections 59, 80, and

162 which grants powers to the Legislature to

do the following - approve the budget

proposal from the Executive arm,67 forbids

any spending unless the approval of the

Legislature has been obtained,68 extends the

same to every other spending that would be

made by the Executive,69 and generally put

overall fiscal responsibility in a siamese

twins relationship involving the Executive

and Legislature.70 In furtherance of this

constitutional power, it has been argued that

by reason of the Fiscal Responsibility Act,

66 Section 81 (1), Constitution of the Federal

Republic of Nigeria, 1999. See additional

provisions in Section 81 (2) (3) & (4). See the

provision in Section 82 where the Constitution

makes provision for emergencies and empowers

the President to make spending in that regard with

Legislature approval, with further backing granted

such ‘urgent’ and ‘unforeseen’ situations in

Section 83 (1) & (2). These provisions can also be

read alongside with the provisions of Section 61

(1) of the Constitution. 67 Section 59 (1) (2) (3) (4) & (5), Constitution of the

Federal Republic of Nigeria, 1999. 68 Section 80 (1) & (2), Constitution of the Federal

Republic of Nigeria, 1999. 69 Section 80 (3), Constitution of the Federal Repub-

lic of Nigeria, 1999. 70 See Section 162 (2), Constitution of the Federal

Republic of Nigeria 1999 which provides that,

“The President, upon the receipt of advice from the

Revenue Mobilisation Allocation and Fiscal Com-

mission, shall table before the National Assembly

proposals for revenue allocation from the Federa-

tion Account, and in determining the formula, the

National Assembly shall take into account, the al-

location principles especially those of population,

equality of States, internal revenue generation,

land mass, terrain as well as population density”.



the National Assembly is empowered, not

only to approve the budgetary estimate

presented by the Executive, but to alter same

as it may deem necessary under the

circumstances.71

In recent times, however, the exercise of

this power has come under severe criticism

following series of allegations leveled against

the 8th National Assembly on the issue of

‘budget padding’ in the 2016 Appropriation

Act.72 Specifically, the then Chairman House

Committee on Appropriation, Hon. Ab-

dulmumin Jibrin accused the Speaker and

other principal officers of the House of Rep-

resentatives of padding the 2016 budget to

the tune of billions of naira targeted at cater-

ing for hitherto unbudgeted constituency pro-

jects.73 He also stated that he resisted at-

tempts on their part to insert about

N40billion extra into the budget for personal

benefits.74 He maintained that this padding

took place outside the House’s main plenary

sessions.75 A counter argument from the

House leadership, however, pointed to the

fact that the alterations were done to ensure

the proper distribution of national resources

to ensure that constituency projects got to

every part of the country.

Budget padding has been defined as, “to

dishonestly add items to bills to obtain more

money”.76 Even though the Constitution

71 A.O. Ekpu and P.I. Iweoha, 2017, “Powers of the

Executive and Legislature in Budget Making

Process in Nigeria: An Overview,” 57, Journal of

Law, Policy, and Globalization, pp44-54. 72 J. Odigbo, 2017, “Legislature and Budget Prepara-

tion in Nigeria: Understanding the Dilemma of

Budget Padding in Nigeria,” 1 (1), South East Po-

litical Science Review, pp204- 216. 73 Note 71. 74 Note 71. 75 Note 71. 76 O. Ndukwe, 2017, “Public Budgetary Process and

Budget Padding: The Nigerian Experience,” 5 (2),

clearly provides for the budget-making pro-

cess to be a joint function between the Exec-

utive and the Legislature, the contention of

the Executive remains that the only role ex-

pected of the Legislature is to approve the

budgetary estimate and nothing more.77 It has

however been argued that this position is not

tenable, as the constitutional practice across

the world particularly in other African na-

tions such as Ghana, Namibia, and Malawi

show that the Legislature is indeed empow-

ered to alter the budget.78 It would appear

therefore that there is nothing unconstitution-

al about the way and manner the National

Assembly has exercised its powers in this

regard, and that in fact, when the Legislature

exercises such budgetary powers, it is a clear

demonstration of the doctrine of separation

of powers as against just being a mere rubber

stamp.

The Legislature also performs oversight

functions whereby it supervises ministries,

departments, and agencies of the Executive

branch towards ensuring that approved

budgetary estimates are adequately adhered

to, as well as the execution of its legisla-

tions.79 The challenge is that often times this

power of oversight has been criticised as

been overtly abused by National Assembly

members.80 It is however important to state

that this framework is what has oiled the

wheel of governance in Nigeria since the

GOUni Journal of Management and Social Sci-

ences, pp106-115. 77 A.O. Ekpu and P.I. Iweoha, n. 70. 78 Note 76. 79 A.T. Shehu, “The Oversight Powers of the

Legislature in Nigeria,” in Law, Politics and

Development, The Challenges of an Emerging

Mega-City: Essays in Honour of Babatunde Raji

Fashola, SAN, (Nigerian Bar Association, Ikeja

Branch 2012), p64. 80 J.Y. Fashagba, 2009, “Legislative Oversight under

the Nigerian Presidential System,” The Journal of

Legislative Studies, 15 (4), pp439-459.



advent of the 1999 Nigerian Constitution.81

The consequence, therefore, is that whenever

the appropriation process is mismanaged

courtesy of unabating disagreements between

the Legislature and Executive, the result is

always monumental.

The second is the framework dealing

with appointment powers under the same

Constitution. In this wise, the Constitution

provides for a plethora of appointments with

the majority of them required to go through a

rigorous process involving the approval or

confirmation of the Upper Chamber of the

Nigerian National Assembly, which is the

Senate.82 Top on the list is the appointment

of Ministers to assist the President in

executing the functions of his office.83 For

this class of appointments, Section 147 (2) of

the Constitution provides that, “Any

appointment to the office of Minister of the

Government of the Federation shall, if the

nomination of any person to such office is

confirmed by the Senate, be made by the

President”.84 Similarly, the Constitution

further provides for a long-list of strategic

offices of the State where appointments

cannot be complete without the signature of

the Senate. These offices provided for in

Section 153 includes the Code of Conduct

81 J. Wehner, 2002, “Parliament and the Power of the

Purse: The Nigerian Constitution of 1999 in Com-

parative Perspective,” 46 (2), Journal of African

Law, pp216-231. 82 Under Nigeria’s constitutional framework, there is

provision for a bicameral legislature made up of a

Senate of 109 members and a House of Represent-

atives of 360 members. While the Senate is com-

monly referred to as the ‘Upper or Red Chamber,'

the House of Representatives is called the ‘Lower

or Green Chamber.' 83 Kuswanto, K., 2018, “Consistency of the

Presidential System in Indonesia,” Sriwijaya Law

Review, 2(2), pp170-182. 84 Constitution of the Federal Republic of Nigeria,

1999.

Bureau, the Council of State, the Federal

Character Commission, the Federal Civil

Service Commission, the Federal Judicial

Service Commission, the Independent

National Electoral Commission, the National

Defence Council, the National Economic

Council, the National Judicial Council, the

National Population Commission, the

National Security Council, the Nigeria Police

Council, the Police Service Commission, and

the Revenue Mobilisation Allocation and

Fiscal Commission.85

While Section 231 of the Constitution

provides that in appointing any person to

Office as Chief Justice of Nigeria, as well as

Justices of the Supreme Court such

appointments must be approved by the

Senate,86 Section 238 prescribes a similar

procedure for appointment to Office of

President of the Court of Appeal.87 The

Constitution under Section 250 mandates the

same for appointment to the Office of Chief

Judge of the Federal High Court;88 Section

256 for appointment to the Office of Chief

Judge of the Hight Court of the Federal

Capital Territory (FCT);89 Section 261 for

appointment to the Office of the Grand Kadi

of the Sharia Court of Appeal of the Federal

Capital Territory (FCT);90 and Section 266

for appointment to the Office of the President

85 Section 153 (1), (a – n), & Section 154 (1) (2) &

(3), Constitution of the Federal Republic of Nige-

ria, 1999. 86 Section 231 (1) & (2), Constitution of the Federal

Republic of Nigeria, 1999. 87 Section 238 (1), Constitution of the Federal

Republic of Nigeria, 1999. 88 Section 250 (1), Constitution of the Federal Re-

public of Nigeria, 1999. 89 Section 256 (1), Constitution of the Federal Re-

public of Nigeria, 1999. 90 Section 261 (1), Constitution of the Federal Re-

public of Nigeria, 1999.



of the Customary Court of Appeal of the

Federal Capital Territory.91

The third is that which deals with the use

of military and emergency powers under the

Constitution. Depicting how power is

arranged here, the Constitution under Section

5 provides that the President is forbidden

from declaring a state of war on another

country, without approval based on a

resolution of both Houses of the National

Assembly in a joint session.92 Furthermore,

he cannot deploy the Armed Forces of the

Federation on combat duties in or outside the

country, except by the approval of the

National Assembly.93 The Constitution

additionally provides for cooperation as

regards the general operational use of the

Armed Forces under Section 217 where it

states that the Armed Forces shall be for the

purpose of, “suppressing insurrection and

acting in aid of civil authorities to restore

order when called upon to do so by the

President, but subject to such conditions as

may be prescribed by an Act of the National

Assembly”.94 The implication is that where it

comes to the use of the military to maintain

internal security, the power to deploy must

be jointly exercised by both branches of

government. Also, pursuant to Section 305 of

the Constitution, the President cannot declare

91 Section 266 (1), Constitution of the Federal Re-

public of Nigeria, 1999. 92 Section 5 (4) (a), Constitution of the Federal Re-

public of Nigeria, 1999. 93 Section 5 (4) (b), Constitution of the Federal Re-

public of Nigeria, 1999. 94 Section 217 (2) (c), Constitution of the Federal

Republic of Nigeria, 1999. See also Section 218

(4), which states that, “The National Assembly

shall have power to make laws for the regulation

of - (a) the powers exercisable by the President as

Commander-in-Chief of the Armed Forces of the

Federation; and (b) the appointment, promotion

and disciplinary control of members of the armed

forces of the Federation.”

a state of emergency in any part of the

country unless such proclamation is ratified

by the National Assembly.95

These three (3) are the notable areas in

which the Constitution advocates

Executive/Legislative cooperation. However,

for a political class that view respect for the

constitution with contempt, these ideals of

cooperation have been promoted as grounds

for Executive/Legislative illicit romance. The

reality is that fusion operates in nearly every

sphere of governance. Even in areas where

the Constitution has not demanded

cooperation, both branches of government

literarily wine and dine together, pursuing the

promotion and security of each other’s

interests. It is instructive to point out that this

practice is rooted in the mode through which

political power is acquired. Under Nigeria’s

democracy, as it is the case everywhere,

power is attained through the conduct of

periodic elections, where political parties as

constitutionally recognised platforms are the

only organisations allowed to sponsor

candidates for elections. This means the idea

of independent candidacy is forbidden. With

their status as major stakeholders in the

political process, Nigerian political parties

overtime evolved as dominant forces in the

unending struggle for power. They see

themselves as extremely powerful that their

words must be final. Given their eminent

position, their goal is often times less about

the Constitution, but more about how to

ensure that the power that has been acquired

is retained at all cost.

The experience in Nigeria is such that

the moment a political party is declared

victorious at the polls and assumes power, it

literarily produces the leadership of both the

95 Section 305 (1) (2) & (3), Constitution of the Fed-

eral Republic of Nigeria, 1999.



Executive, well as Heads of both the Senate

and the House of Representatives,96

something seen as a matter of right.97 In

ensuring that the ruling party’s interest is

well secured under the new government, the

party leadership pushes the dogma of party

supremacy down the throat of its members,

making sure that all and sundry are whipped

in line as to doing the party’s bidding as re-

gards the election of both the Senate

President and the Speaker of the House of

Representatives. The result is that upon their

emergence, these two leaders of the

Legislature are expected to promote the in-

terest of the party by supporting the President

at all times, notwithstanding that such agenda

may be inimical to the overall good of the

country.

It was only in the year 2011 that a crack

appeared in the wall of this long-established

convention when Aminu Waziri Tambuwal

against the choice of his party for the Office

of the Speaker of the House of

Representatives, teamed up with members of

the main opposition party to emerge as

Speaker. He later defected to the opposition

and remained in office till the end of his term

as the Head of a branch of government not

from the ruling party. The same scenario was

repeated in 2015, when Dr. Bukola Saraki

96 In addition, even as the party who won the polls

produces key Legislative office such as the Presi-

dent of the Senate and the Speaker of the House of

Representatives, it is also entitled to produce the

Senate Majority Leader and the House Majority

Leader, while the party who is the runner up is re-

warded with the positions of Senate Minority

Leader and House Minority Leader. It was only in

the year 2013 that a crack appeared in the wall of

this long-stablished 97 The same is the norm in nearly all other democrat-

ic countries with a leading example being the

United States of America where the winning party

after producing the President is most likely to pro-

duce the Speaker of the House of Representatives.

and Hon. Yakubu Dogara both of the All

Progressives Congress (APC) again enlisted

members of the Peoples’ Democratic Party

(PDP), to emerge Senate President and

Speaker respectively.98 With the exception of

these cases, from 1999 till date Nigeria’s

brand of Executive/Legislative cooperation

has remained a system whereby the

Legislature becomes an appendage of the

Executive, rubberstamping its actions with-

out little or no check. This has rendered the

whole idea of separation of powers under the

country’s constitutional practice of little

weight. Under this sort of arrangements, the

power becomes so fused and carefully

managed in-house, with the sole aim of

ensuring that the ruling party remains in

power for as long as possible.

Scholars have argued that Nigeria’s

experience of prolonged Military rule in

which both Executive and Legislature power

was fused, contributed largely in entrenching

the above system, especially when one

considers the fact that most of the members

of the current political class are themselves

products of military rule99. It was under this

atmosphere that the PDP, for instance, was

able to maintain its grip on power as

Nigeria's ruling party for 16 years, before it

was dislodged following the victory of the

APC at the 2015 General Elections. The

reality is that most of those who wield

powers particularly in the Executive and

98 The emergence of the duo later degenerated into an

acrimonious relationship with their party leader-

ship and the Presidency who accused them of be-

traying the party. The hostilities and political un-

dercurrents later saw both defects to the opposition

PDP towards the end of their tenure. 99 O. Fagbadebo and S. Francis, 2016, “Power

Relations Amongst Institutions of Government in

Nigeria’s Presidential System of Government:

Issues and Contentions,” 7 (7), International

Journal of Politics and Good Governance, p7.



Legislative branches of government in Nige-

ria come from the same political party, and

they never hide the fact that they share the

same political interest and agenda. From the

foregoing, it can be argued that though the

Nigerian Constitution advocates separation

of powers between the Executive and the

Legislature, what obtains in practice is a far

cry from this and its application gives more

of an impression of fusion than separateness.

It is even worse at the State level, where

separation of powers would appear to have

been severely watered down, as most Legis-

lative houses are virtually in the pocket of the

Executive usually personified by Governors

who see themselves as ‘Constituted Authori-

ties’100. In most of these States, the other two

branches of government practically live at

the pleasure of the Executive, a phenomenon

that is carefully designed before the govern-

ment even comes into being. For example,

most of the State Governors have been ru-

100 A perfect area of connivance between the State

Governors and State Houses of Assembly is in the

area of Local Government elections which has

never seen the light of the day. The State

Legislature simply rubber-stamps Caretaker

Committees who hold office for donkey years and

who are nothing but stooges of the Governor. For

more insight on the politics of State Governors that

have stifled the autonomy and democratic

administration of Local Governments in Nigeria,

see generally K. Olufemi, ‘Leadership in

Administration: A Nigerian Local Government

Outlook’, in Institutional Administration: A

Contemporary Local Government Perspective

from Nigeria, (Ikeja: Malthouse Press Ltd., 2000),

p49; O. Oyediran, ‘Local Government as a Third

Tier of Government in Nigeria: The 1976 Local

Government Reforms and After, in J. Elaigwu, and

R. Akindele, (eds.), Foundations of Nigerian

Federalism, 1960-1995, (Jos: Institute of

Governance and Social Research, 2001), pp194-

211; J.A.A. Ayoade, ‘The Development of

Democratic Local Government in Nigeria’, in

Local Government in Nigeria and the United

States: Learning from Comparison, (Ile-Ife: Local

Government Publication Series, 1995), pp19-20.

mored to be the ones who personally hand-

pick candidates to run for elections into the

Legislative houses such that once they suc-

ceed at the polls, their loyalty belongs to the

Governor the benefactor, who is some sort of

kingmaker. This is all in a revolving rentier

system in which public office is generally

deployed to facilitate private interest.101 It

has also perpetuated a system in which the

other two branches, particularly the Legisla-

ture remain under the dominating force of the

Executive. For Nigeria to reinvent its consti-

tutional framework, therefore, this unhealthy

state of affairs must give way to a proper

flourishing of the system, especially one in

which all three branches of government even

though separate, can co-exist in a harmonious

power relationship.

THE SEPARATION OF POWERS VS

COOPERATION DEBATE: THE JUDI-

CIAL BRANCH AS AN EXCEPTION

The reality under contemporary

constitutional practice is that the doctrine of

separation of powers is past its prime and has

far outlived it earlier eminence. A ray of

hope is, however, seen in the fact that one out

of the three branches of government still ap-

pears to be separate in terms of constitutional

text and practice, and this is the Judicial

branch. Even though attaining the ideals of

independence of the judiciary remains more

of a struggle in most developing democracies

given that the then colonial powers were not

interested in its development,102 in most

101 O. Eme and N. Anyadike, 2012, “Ruling Parties

and Democratic Consolidation: The Case of

People’s Democratic Party (1999-2009),” 1 (1),

Review of Public Administration and Management,

pp107-124. 102 Y. Vyas, 1992, “The Independence of the

Judiciary: A Third World Perspective,” 11 (6),

Third World Legal Studies, p131.



countries one branch that seem to enjoy some

form of ‘separateness’ is the Judiciary. This

is predicated on the fact that it is the only

branch whose members or head are not

professional politicians, and so do not come

into office through the boobytrap of politics.

Given its apolitical nature therefore, great

confidence is reposed in the Judicial branch,

such that it can be called upon anytime to

examine the political process which produced

either the Head of the Executive or the

members of the Legislature. For example, in

Nigeria’s recent constitutional history the

Judiciary in bearing its fangs has nullified

key elections in which Governors had been

fraudulently elected only for them to be

removed from office.103 While lower courts

have been active in reviewing the actions of

executive and administrative bodies towards

determining the true delineation of rights,

duties, and obligations imposed by law,104

the apex court in the course of the fourth

republic has also left no stone unturned in

uphold the Constitution when necessary.105

However, this separateness and the

whole idea of the independence of the

Judicial branch continues to waver on shaky

grounds. While on the one hand, Scholars

argue that the Judicial branch itself has

somehow being intruding into the powers of 103 In this wise, Governors Rotimi Amaechi, Kayode

Fayemi, Olusegun Mimiko, Adams Oshiomhole,

were key beneficiaries amongst other. See the fol-

lowing stand out cases, Peter Obi v. Independent

National Electoral Commission (INEC), (2007)

LPELR - SC 123/2007; Mimiko v. Independent

National Electoral Commission (INEC), (2012) 7

NWLR (Pt. 1300), p.538; Oshiomhole v. Inde-

pendent National Electoral Commission (INEC),

(2011) 18 NWLR (Pt. 1279), p493. 104 J.O. Agbana, 2006, “An Appraisal of the Doctrine

of Natural Justice,” 2, Fountain Quarterly Law

Journal, p156. 105 R. T. Suberu, 2008, “The Supreme Court and Fed-

eralism in Nigeria,” 46 (3), The Journal of Modern

African Studies, pp451-485.

other branches of government,106 on the other

hand, even the independence of the Judiciary

in Nigeria does not appear constitutionally

settled. This can be seen from the provisions

of Section 17 (1) (e) of the Constitution

which provides that "The independence,

impartiality, and integrity of Courts of Law,

and easy accessibility thereto shall be

secured and maintained”.107 Unfortunately,

this provision falls under what the

Constitution refers to as ‘Fundamental

Objectives and Directive Principles of State

Policy’,108 a Chapter that is made non-

justiciable by reason of Section 6 (6) (c) of

the Constitution, which renders its glowing

letters on judicial independence of little or no

effect.109 It can, however, be argued that

since the Fundamental Objectives and

Directive Principles of State Policy as a form

of political contract are nothing but mere

aspirations,110 the independence of the

Judicial branch can still be deemed

constitutionally secured in view of Section 6

of the Constitution which extensively

provides for the judicial powers of the

Federation.111

Current realities, however, show that

notwithstanding the kind words of the

106 A.O. Nwafor, 2013, “The Lesotho Constitution

and Doctrine of Separation of Powers: Reflections

on the Judicial Attitude,” 6 (1), African Journal of

Legal Studies, pp49-68. 107 Constitution of the Federal Republic of Nigeria,

1999. 108 Chapter II, Constitution of the Federal Republic of

Nigeria, 1999. 109 A.A. Olowofoyeku, 1989, “The Beleaguered For-

tress: Reflections of the Independence of Nigeria’s

Judiciary,” 33 (1), Journal of African Law, pp55-

71. 110 B.O. Okere, 1983, “Fundamental Objectives and

Directive Principles of State Policy under the Ni-

gerian Constitution,” 32 (1), International & Com-

parative Law Quarterly, pp214-228. 111 Section 6 (1) (2) (3) (4) (5) & (6), Constitution of

the Federal Republic of Nigeria, 1999.



Constitution, Nigeria’s constitutional practice

still finds itself trapped in serial attempts by

the political class to fuse the Judicial branch

into the marriage of convenience between the

Executive and Legislature. This, therefore,

calls for continuous vigilance. The current

framework of separateness between the

judicial branch and the Executive/Legislature

must be commended, while more vigilance is

demonstrated. To achieve this, legal minds

have continued to call attention to why the

total insulation of the Judicial branch must be

the business of all. According to Ikhariale, a

deliberate separation of the Judiciary from

the other two branches of government, is the

only contrivance that can guarantee the

durability of constitutionalism.112

Reinforcing this position Phillip Kurland in

his brilliant work ‘The Rise and Fall of the

Doctrine of Separation of Powers’, opined

that this stature of the Judicial branch derives

majorly from the collapse of the doctrine of

separation of powers and its failure to live up

to its foundational objectives.113 He closed

his thoughts by calling to remembrance the

vigilance of the Judiciary which has made it

the only bastion of hope for the people

against the combined tyranny of the

Executive and Legislature, but then warned

that one can only hope that the Judiciary will

continue to have the strength and will power

not to go the way of all flesh.114

112 M.A. Ikhariale, 1990, “The Independence of the

Judiciary under the Third Republican Constitution

of Nigeria,” 34 (2), Journal of African Law,

pp145-158. 113 P.B. Kurland, 1986, “The Rise and Fall of the

Doctrine of Separation of Powers,” 85, Michigan

Law Review, p611. 114 Note. 111.

CONCLUSION

This paper has examined the dilemmas con-

fronting the doctrine of separation of powers

under Nigeria’s constitutional practice. It ex-

amines the historical development of the doc-

trine as well as its framework under the 1999

Nigerian Constitution. It analyses the doc-

trine through the exercise of key governmen-

tal powers such as spending/budgetary pow-

ers, appointment powers, and mili-

tary/emergency powers. The paper draws the

conclusion that except for the commendable

independence of the judicial branch, there

appears to be a fusion of powers between the

Executive and Legislature, a development

that has seen the Legislature tied to the apron

strings of the Executive, and ensured that the

former is continually dwarfed by the latter.

The paper therefore concludes that for mean-

ing development in Nigeria’s constitutional

practice, there is a need for the three branch-

es to be able to exercise their powers sepa-

rately, even though there may be instances

where such powers may overlap for coopera-

tion, effective working of government, and

for the delivery of purposeful governance.

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